The reporting on this issue has been strange. I don't know the finer legal points, though I see the logic in each side's claims. It really comes down to legal details on the transaction that few of us here are qualified to speak on. (I happen to fall into the category that thinks that the seller is trying to break the contract because they realize they WAY underpriced their product, but I cannot be certain that they don't have a legal point in their favor.)

The fine legal details likely matter less than some broad legal principles.

Apple is arguing fraud or mistake. The emails that have recently come to light support that. Broadly, nobody should benefit or get hurt by fraud or a mistake.

The problem that Apple has, in my view, is that the trademark registry showed that the the registered owner of the trademark was never a party to the actual sales contract. Broadly, registered owners are not liable for third parties selling their stuff. That is one hugely important reason why public registries exist.

The fact that the seller and the registered owner are affiliates under common ownership is the only "fine point" that I see here. It may come down to whether or not the three Proview entities have identical ownership, or whether "that one guy" merely had an interest in each of the three. At any rate, they seem to be controlled by creditor's committees in the Bankruptcy courts at this point in time, which may also throw more "fine points" into the mix.

But it can be seen, at its heart, as a battle between the two broad principles outlined above.

Yang (who runs all the different Proviews) was involved in the transaction. He can not claim that the subsidiary acted without his approval - since he controls the subsidiary and was involved with the deal.

Yang basically says he did not approved his own actions in Taiwan, and because officially China does not recognize Taiwan's government and its laws, Chinese court does not care. Yang knows this very well because he is from Taiwan.

They aren't talking about that at this point. THey are talking about banning import and especially export of the product until it is settled. Remember they are possibly about to release an new iPad. If the government bans exports then that kills that release everywhere. So that's the first concern.

Then once that is covered they will deal with the whole 'we already bought it' issue. Which might come down to Apple agreeing to pay for China but not at the current value. After all they acted in good faith, it was Proview that didn't. So why should they make billions for 'cheating' so let them have a second payment of $50k which was the value of the 'mark when the sale was taking place.

Ho ho ho. It could be even more complex than we know. Proview owes the Chinese banks a billion dollars?!? That is very serious in China, as others have pointed out. So the state has a complex problem here and are surely looking for money to cover that in some way. Just imagine if there are other entities doing some bribing of officials. Then it becomes more than patents. Methinks MS got involved to bolster the claim for a reason. Do the judges have a 'deal' to pretend to shut down exports just for show for a few weeks? is this corporate politics on the world stage? Playing with fire, them.

What is really factored into the price is a kind of perpetual sense of disbelief that any company could be as good as Apple is. ~Retrogusto

If you can quote language from the Hong Kong decision in which they have reached a final judgement that Apple owns the trademark in China, please do so.

I did not see any such language. If I missed it, please quote it.

The Hong Kong decision can be accessed at All Things D. Look at the Appendix, which lists the actual decisions made. Also check out Paragraph 1, which states that the decision relates to an application for an interlocutory injunction.

I never said that Hong Kong made that judgment.

What I said was that the Hong Kong court had issued a judgment that Proview could not further encumber the trademark nor could they claim any ownership at this point. The suggestion that Proview sell the trademark to Samsung would be a very clear violation of that court order. Even Proview's current public claims are probably a violation.

"I'm way over my head when it comes to technical issues like this"Gatorguy 5/31/13

In the court decision, Judge Hon Poon writes that Proviews conduct smells of conspiracy driven by financial desperation, and that theres reason to believe that it acted in breach of its agreement with Apple by wrongfully refusing to honor its obligation to hand over the iPad trademark in China.

Quote:

Originally Posted by anakin1992

it is absurd that apple lawyer quoted "national interest of china". sound stupid, but threatening. i don't think they would see the result as they want.

Not the least bit absurd. If that were the only argument Apple used, it might be foolish. But since Apple used plenty of legal arguments, there's nothing foolish about appealing to patriotism, as well.

"I'm way over my head when it comes to technical issues like this"Gatorguy 5/31/13

I'll say it once again. It's time Apple tell Foxconn to get the Brazilian facility up to capacity ASAP and that Foxconn needs to scout alternative,non-Chinese locations for manufacturing. The threat of moving production from China will cause the court to move with great caution. But this should not be a threat- Apple should insist that Foxconn diversify their manufacturing base because it is the prudent thing to do.

I believe he was saying this when he said China's national interest will be harmed.

Wait. Are you trying to say that the Hong Kong court held that Apple owns the Chinese trademark, or not? That question has not even come before them. They made no such decision.

You seem to be going back and forth on this.

Are you incapable of reading the article? Once again, the article I cited said:

Quote:

In the court decision, Judge Hon Poon writes that Proviews conduct smells of conspiracy driven by financial desperation, and that theres reason to believe that it acted in breach of its agreement with Apple by wrongfully refusing to honor its obligation to hand over the iPad trademark in China.

"I'm way over my head when it comes to technical issues like this"Gatorguy 5/31/13

No court has ever made that judgement, and the official Chinese trademark registry says otherwise.

Apple has a claim that in all fairness, the trademark should be transferred to them. But that is all Apple has at this point.

I don't think that the current ownership is in question, but rather, the question is whether whether ownership should be transferred from Proview to Apple.

Since you seem to be following this rather closely, I'm curious what your personal opinion is about whether Apple owns the trademarks (whether they were transferred by Proview or not).

It seems to me, and I am not a legal expert by any means, that Yang was in fact in direct control of all Proview's subsidiaries, and that assertion was also made by the Hong Kong court:

"Proview Holdings, Proview Electronics and Proview Shenzhen, all clearly under Yang's control, have refused to take any steps to ensure compliance ..." and "as the chairman and chief executive officer of Proview Holdings and the responsible person and director of Proview Electronics as the legal representative, general manager, and chairman of both Proview Shenzhen and Yoke Technology, he had at the material time management and control over them;"

The fact that the emails from Proview's Legal Department negotiating the deal contain the footer "PROVIEW TECHNOLOGY (SHENZHEN) CO., LTD" and Shenzhen address, at least to me, imply that Proview Shenzhen was driving the deal from their side.

In my opinion, I feel that Proview (in all of it's manifestations) sold the trademark to Apple (visa vie IP Applications) but then failed to execute the paperwork to actually execute the transfer. Again, I'm curious as to what your opinion is having read (presumably) the same documents I have.

Since you seem to be following this rather closely, I'm curious what your personal opinion is about whether Apple owns the trademarks (whether they were transferred by Proview or not).

It seems to me, and I am not a legal expert by any means, that Yang was in fact in direct control of all Proview's subsidiaries, and that assertion was also made by the Hong Kong court:

"Proview Holdings, Proview Electronics and Proview Shenzhen, all clearly under Yang's control, have refused to take any steps to ensure compliance ..." and "as the chairman and chief executive officer of Proview Holdings and the responsible person and director of Proview Electronics as the legal representative, general manager, and chairman of both Proview Shenzhen and Yoke Technology, he had at the material time management and control over them;"

The fact that the emails from Proview's Legal Department negotiating the deal contain the footer "PROVIEW TECHNOLOGY (SHENZHEN) CO., LTD" and Shenzhen address, at least to me, imply that Proview Shenzhen was driving the deal from their side.

In my opinion, I feel that Proview (in all of it's manifestations) sold the trademark to Apple (visa vie IP Applications) but then failed to execute the paperwork to actually execute the transfer. Again, I'm curious as to what your opinion is having read (presumably) the same documents I have.

You've pretty well summed it up.

"I'm way over my head when it comes to technical issues like this"Gatorguy 5/31/13

Since you seem to be following this rather closely, I'm curious what your personal opinion is about whether Apple owns the trademarks (whether they were transferred by Proview or not).

It seems to me, and I am not a legal expert by any means, that Yang was in fact in direct control of all Proview's subsidiaries, and that assertion was also made by the Hong Kong court:

"Proview Holdings, Proview Electronics and Proview Shenzhen, all clearly under Yang's control, have refused to take any steps to ensure compliance ..." and "as the chairman and chief executive officer of Proview Holdings and the responsible person and director of Proview Electronics as the legal representative, general manager, and chairman of both Proview Shenzhen and Yoke Technology, he had at the material time management and control over them;"

The fact that the emails from Proview's Legal Department negotiating the deal contain the footer "PROVIEW TECHNOLOGY (SHENZHEN) CO., LTD" and Shenzhen address, at least to me, imply that Proview Shenzhen was driving the deal from their side.

In my opinion, I feel that Proview (in all of it's manifestations) sold the trademark to Apple (visa vie IP Applications) but then failed to execute the paperwork to actually execute the transfer. Again, I'm curious as to what your opinion is having read (presumably) the same documents I have.

It seems like fraud or mistake to me. It seems that there was a meeting of the minds that Apple would acquire all the Proview trademarks, including China.

But they didn't, because they didn't deal with the correct company. That might rise to the level of legal malpractice.

So we have an equitable situation in Apple's favor, combined with Apple not in fact signing any contract with the trademark's owner. The second half is a legal argument, as opposed to an equitable one.

I come down on the side of fraud or mistake. I think that the court should order the registry to change the official record to show that Apple owns the name but only if the 3 different Proview companies have basically the same creditor structure. This is the "Proview's all the same one guy" argument.

If the 3 companies are NOT controlled by the same creditors, it would not be fair to the creditors of the Schenzen company to let the trademark be transferred. That would favor the Taiwan creditors.

If taking the equitable route would serve to hurt some creditors while helping others, I'd take the purely legalistic route and rely on the fact that Proview Schenzen was the registered owner, and Proview Schenzen never signed any sales contract.

But I think that this will be settled. The terms will be confidential, but will likely include some sort of payment from Apple to the Chinese Proview, combined with letting the Taiwan company off the hook for their blatant misrepresentation in the contract that they owned the rights in China.

It seems like fraud or mistake to me. It seems that there was a meeting of the minds that Apple would acquire all the Proview trademarks, including China.

But they didn't, because they didn't deal with the correct company. That might rise to the level of legal malpractice.

So we have an equitable situation in Apple's favor, combined with Apple not in fact signing any contract with the trademark's owner. The second half is a legal argument, as opposed to an equitable one.

I come down on the side of fraud or mistake. I think that the court should order the registry to change the official record to show that Apple owns the name but only if the 3 different Proview companies have basically the same creditor structure. This is the "Proview's all the same one guy" argument.

If the 3 companies are NOT controlled by the same creditors, it would not be fair to the creditors of the Schenzen company to let the trademark be transferred. That would favor the Taiwan creditors.

If taking the equitable route would serve to hurt some creditors while helping others, I'd take the purely legalistic route and rely on the fact that Proview Schenzen was the registered owner, and Proview Schenzen never signed any sales contract.

But I think that this will be settled. The terms will be confidential, but will likely include some sort of payment from Apple to the Chinese Proview, combined with letting the Taiwan company off the hook for their blatant misrepresentation in the contract that they owned the rights in China.

Once again, you are completely ignoring the Hong Kong decision and making things up as you go along.

It also doesn't matter if the three Proviews have the same creditors. If Yang had the authority to make such a decision for all three companies and if there were no liens on the trademark at the time of its transfer, then the transfer was legal - regardless of who might have owed money to who.

"I'm way over my head when it comes to technical issues like this"Gatorguy 5/31/13

Even though it's a ridiculous issue involving a crap company and a heinous dictatorship, it's still kind of fun watching an American corporation deal with a government that can't be acquired quite as easily as buying US Congressmen a six-pack at a time.

Right, because clearly in court a lawyer only can only say two sentences.

Quote:

Originally Posted by austingaijin

Since you seem to be following this rather closely, I'm curious what your personal opinion is about whether Apple owns the trademarks (whether they were transferred by Proview or not).

It seems to me, and I am not a legal expert by any means, that Yang was in fact in direct control of all Proview's subsidiaries, and that assertion was also made by the Hong Kong court:

"Proview Holdings, Proview Electronics and Proview Shenzhen, all clearly under Yang's control, have refused to take any steps to ensure compliance ..." and "as the chairman and chief executive officer of Proview Holdings and the responsible person and director of Proview Electronics as the legal representative, general manager, and chairman of both Proview Shenzhen and Yoke Technology, he had at the material time management and control over them;"

The fact that the emails from Proview's Legal Department negotiating the deal contain the footer "PROVIEW TECHNOLOGY (SHENZHEN) CO., LTD" and Shenzhen address, at least to me, imply that Proview Shenzhen was driving the deal from their side.

In my opinion, I feel that Proview (in all of it's manifestations) sold the trademark to Apple (visa vie IP Applications) but then failed to execute the paperwork to actually execute the transfer. Again, I'm curious as to what your opinion is having read (presumably) the same documents I have.

I would just like to point out we've given the above to various posters (who don't believe the above) multiple times.

In any case I would like to post this reply from another poster (DS) that for some reason PM'ed me, but in light of the content I think it's okay to repost extracts here, it's interesting and addresses your questions. While the arguments are well-constructed, I feel that they focus on technicalities instead of the whole picture.

Quote:

Originally Posted by DS

- Yang is not a party to the agreement. He signed his name but he signed the name only in his capacity as the legal representative of the entity called Proview Electronics. An act made by this entity will neither be legally binding on himself, nor the other entity called Shenzhen Proview, despite he also serves as the representative, unless Apple can prove the latter authorized Proview Electronics to do so.

-Before the actual transfer (to complete a transfer, you have to be granted with a trademark certificate with your own name on it ), the owner is still Proview Shenzhen. Even if there was a binding contract between Proview Shenzhen and Apple, before the transfer, Apple only has a contractual right to claim the trademark and but is still not the owner. The actual contract, however, is very likely to be held not binding given that Proview Electronics may be deemed to lack the apparent authority to enter into a contract on behalf of Proview Shenzhen. Proview Shenzhen as the real owner, can thus request law enforcement authority to halt sales of infringement products.

-These [emails] may be real. But Apple has to prove it, otherwise they won't be admitted as evidence. If I am an random guy working for this company and have a corporate Email account. I can forge an Email signature and claim that I am the chief operating officer and execute contracts. If the other company sue my company, these contracts will not be binding, unless they can prove they actually examined an authorization letter from my company which led them believe I have the authority. Apple is unable to submit any evidence other than the emails themselves, which, according to the court ruling, bear a disclaimer that it cannot be used as formal contract

-If Apple can't prove the contract is binding on Proview Shenzhen. Proview Shenzhe remains as the owner and can sue Apple for infringement, and can block sales and exports of iPads...etc (the latter measure against infringement was the result of long term effort and lobby by western companies )

-...creditors do not bear any the burden of proof. Apple is the one who initiated the lawsuit to claim the iPad trademark, and Apple alone bears the burden of proof that it purchased the trademark from someone with the authority to do so, since all public information shows the owner is someone else

Even though it's a ridiculous issue involving a crap company and a heinous dictatorship, it's still kind of fun watching an American corporation deal with a government that can't be acquired quite as easily as buying US Congressmen a six-pack at a time.

Different carrot, new stick… It must be terribly confusing.

Yup... In Asia instead of hookers for free they want iPhones, Macs and iPads for free. Also, buying a judge or public authority doesn't guarantee they'll "go your way". I've spoken to nightclub owners in Kuala Lumpur, one of them left to go to a different city because he'd bribe the officials and they'd still randomly raid the club. In the new city where he has his club, he's got a nice spot for the officials to chill. Also so that he can keep an eye on them, they wouldn't raid a nightclub they're not supposed to be at!

Once again, you are completely ignoring the Hong Kong decision and making things up as you go along.

It also doesn't matter if the three Proviews have the same creditors. If Yang had the authority to make such a decision for all three companies and if there were no liens on the trademark at the time of its transfer, then the transfer was legal - regardless of who might have owed money to who.

YOu may think that I ignored the Hong Kong decision, but tha would indicate that you missed the part where I said I thought that there was fraud or mistake. Likely you don't realize the underlying rationale behind what the judge said - or why he said it.

And none of us know what the ownership structure was of the 3 companies. Or what it is now. Or what authority "the one guy" had. You yourself seem to concede that the trademarks may have had been encumbered at the time of transfer.

No court has evetr reached a final decision that Apple owns the trademark in China. At this point in time, it is owned by Proview Schenzen, and they never signed any document transferring it.

If the Chinese court believes both that Apple got snookered, and that they should not be blamed for their failure to confirm ownership on the pubilc registry, THEN will order that the mark be transferred form the Schenzen company to Apple. As of now, it is owned by Schenzen and its creditors.